The Supreme Court of Appeal in President of RSA and others v M & G Media Ltd  3 All SA 56 (SCA) highlighted the need for public bodies from whom information is requested in terms of the Promotion of Access to Information Act 2 of 2000 (PAIA) to foster “a culture of justification” and took a dim view of the President’s refusal to disclose a report submitted to him by two judges following a visit to Zimbabwe shortly before its 2002 elections and at the President’s behest, because the President had failed adequately to justify such refusal as required by PAIA. The Supreme Court of Appeal ordered disclosure of the report.
On appeal in President of the Republic of South Africa and Others v M & G Media Ltd 2012 (2) BCLR 181 (CC), a decision that split the Constitutional Court five to four, a majority of the Constitutional Court, instead of ordering disclosure of the report, held that this was a matter where the High Court ought to have invoked its powers under section 80 of PAIA by taking a “judicial peek” at the report to determine whether or not disclosure was appropriate. The Constitutional Court remitted the matter to the High Court for examination in terms of section 80, on the basis that the High Court was best placed to consider whether the President’s grounds for refusing to disclose the report were justified.
Both the Supreme Court of Appeal and the Constitutional Court pointed out that “the holder of information bears the onus of establishing that the refusal of access to the record is justified under PAIA”.
The Supreme Court of Appeal found that the President had failed to discharge this onus because the affidavits filed on his behalf were reminiscent of those customarily filed on behalf of the former apartheid government in cases such as Minister of Law and Order v Dempsey 1988 (3) SA 19 (A) and South African Defence and Aid Fund v Minister of Justice 1967 (1) SA 31 (C), in that they sought to “assert conclusions...with no evidential basis to support them, in the apparent expectation that their conclusions put an end to the matter”. The Supreme Court of Appeal rejected this apartheid-style approach and reiterated that PAIA calls for a proper evidential basis to justify the secrecy, which was not provided in the affidavits filed on behalf of the President.
The President’s failure to discharge the onus placed upon him by PAIA led the Supreme Court of Appeal to the inexorable conclusion that the report ought to be disclosed. A minority of the Constitutional Court agreed with this finding.
The Supreme Court of Appeal declined to make use of section 80 of PAIA which would permit a court to take a “judicial peek” at the information in dispute in order to be in a better position to decide on whether or not it should remain secret, because it did not wish to make itself a party to secrecy which would have the end result of undermining the public's faith in the judicial system. The Supreme Court of Appeal held that although “[t]here will no doubt be cases where a court might properly make use of those powers...they are no substitute for the public body laying a proper basis for its refusal”. Again, a minority of the Constitutional Court agreed with this approach. Writing for the minority, Justice Cameron went so far as to hold that:
“To give secret judicial examination of disputed records a central place in deciding claims to exemption, instead of enforcing the burden government rightly bears to justify withholding information, is in my view a grave error.”
In contrast, a majority of the Constitutional Court, while accepting that the state had not met its evidential burden, found that because the state was “hamstrung” in its ability to properly justify the grounds of refusal to disclose the report precisely for the reason that it could not do so without referring to secret portions of the report itself, this was a proper case for section 80 of PAIA to be invoked.
As was pointed out by the Constitutional Court, the relevant portions of section 80 of PAIA provide that:
“(1) Despite this Act and any other law, any court hearing an application, or an appeal against a decision on that application, may examine any record of a public or private body to which this Act applies, and no such record may be withheld from the court on any grounds.
. . . .
(3) Any court contemplated in subsection (1) may—
(a) receive representations ex parte;
(b) conduct hearings in camera; and
(c) prohibit the publication of such information in relation to the proceedings as the court determines, including information in relation to the parties the proceedings and the contents of orders made by the court in the proceedings.”
Chief Justice Ngcobo (as he then was), writing for a majority of the Constitutional Court found that the provisions of section 80 could be triggered “to the extent that the state was hampered by its statutorily imposed inability to refer or rely on the contents of the report” such that it could not provide more specific evidence to justify the exemptions it claimed as a basis for refusing disclosure. In this regard it was held that:
“Where the validity of the claim of exemption cannot be responsibly evaluated without the aid of information beyond that contained in the affidavits and the record before the court, and the body refusing access to the record pleads that it cannot provide additional evidence to support its claim to exemption without referring to protected contents in the record and thereby contravening the Act, it is proper for a court to resort to the provisions of section 80.”
Chief Justice Ngcobo also pointed out that the power to take a “judicial peek” at a record in PAIA cases:
“is a discretionary power that must be exercised judiciously, with due regard to the constitutional right of access to information and the difficulties the parties face in presenting and refuting evidence. It empowers courts to independently review the record in order to assess the validity of the exemptions claimed, and provides legislative recognition that, through no fault of their own, the parties may be constrained in their abilities to present and refute evidence.”
In other words, the Constitutional Court held that the power in section 80 of PAIA should be invoked:
First, having regard to the unique constraints facing the parties in presenting and refuting evidence that arise precisely because of the alleged secrecy of records of the state, provided that such constraints do not arise because of any fault of the parties themselves; and
Secondly, where the responsible exercise of the judicial function will be facilitated by a “judicial peek” in circumstances where the material necessary to responsibly determine whether a record falls within an exemption claimed is not before the court.
Although the principles expressed in relation to the power to invoke section 80 seem sensible, what is concerning about the majority judgment of the Constitutional Court is that it appears to give the state an easy out in respect of its obligations to justify non-disclosure, which in a society seeking to foster a “culture of justification” is less than desirable. Tellingly, Professor Hoexter describes the majority’s decision as “surprising”.
On the facts, there seem to have been a number of ways in which the President could have supplemented its grounds for refusal (these were highlighted by Justice Cameron and by the Supreme Court of Appeal), such as putting up the evidence of former President Thabo Mbeki or that of the judges who prepared the report, and making a genuine effort to discharge the onus of proving that refusal to disclose the report was justified. The President’s failure to do so, and the subsequent remittal of the matter to the High Court in the circumstances arguably lends itself more to keeping state secrets than to achieving the constitutional goals of achieving accountability, responsiveness and openness (see Brummer v Minister of Social Development 2009 (6) SA 323 (CC)).
On the other hand, Judge Griesel, having taken a “judicial peek” at a document in a PAIA dispute and ordering disclosure thereof (he even went so far as to attach the document in question to his judgment, thus arguably curtailing any possibility to meaningfully appeal his decision), recently argued in relation to section 80 of PAIA in the unreported judgment of the Western Cape High Court in the matter between Independent Newspapers (Pty) Ltd and others and the African National Congress and another under case number 12164/11 (hereafter “Independent Newspapers”) that the:
“very purpose [of section 80] is to test the argument for non-disclosure by using the record in question to decide the merits of the exemption claimed and the legality of the refusal to disclose the record. In this sense, it facilitates, rather than obstructs, access to information.”
Judge Griesel also argued that the courts powers under section 80 ought to “deter frivolous claims of exemptions”.
While it may be so that taking a “judicial peek” enables a court to test the merits of the grounds of refusal for disclosure asserted by a public body in terms of PAIA, it remains doubtful whether this approach (as opposed to simply ordering disclosure of the document) is acceptable in circumstances where a public body has failed to satisfy the evidential burden of justifying refusal. This is something that was perhaps implicitly recognised by Judge Griesel in Independent Newspapers when he said that he “may have been unduly lenient in favour of the respondents by invoking the provisions of s80” instead of simply ordering disclosure.